Skip to content Blankenship v. Allstate Ins. Co. ? Minority Does Not Excuse Non-Compliance With Two-Year Limitations Period Applying To Claims Against Uninsured Motorist Insurer


Search Publications

July 2010

Blankenship v. Allstate Ins. Co. ? Minority Does Not Excuse Non-Compliance With Two-Year Limitations Period Applying To Claims Against Uninsured Motorist Insurer

Injured Party's Minority Did Not Excuse His Failure To Satisfy Any Of The Conditions Set Forth In Insurance Code Section 11580.2(i) For Preserving Claim Against His Uninsured Motorist Insurer.

(June, 2010) ___ Cal.App.4th ___; 10 C.D.O.S. 8406

The California Court of Appeal, Third Appellate District, affirmed the trial court's denial of  a petition to compel uninsured motorist arbitration because the insured failed to satisfy any of the conditions set forth in Section 11580.2(i) of the California Insurance Code required to preserve a claim against the insurer within the statutory limitations period.  The Court of Appeal held the insured's minority did not excuse non-compliance.

On September 10, 2004, 13 year-old Dakota Blankenship was riding his bicycle on the wrong side of the road when he suddenly turned into traffic, collided with a car and was injured.  The car's driver was uninsured and the insurer for the car's owner denied coverage for Blankenship's claim.

A few months later, on January 19, 2005, Blankenship's stepfather made a claim on Blankenship's behalf with his own auto insurer, Allstate Insurance Company, under his policy's uninsured motorist ("UM") coverage.  Allstate made a written settlement offer of $10,000 on May 25, 2006.  In the same letter, and a separate letter sent the same day, Allstate advised that the statute of limitations on Blankenship's UM claim would expire on September 10, 2006, the second anniversary of the accident. 

Nearly three years after the accident, an attorney representing Blankenship contacted Allstate and demanded arbitration a few months later.  In response, Allstate asked for evidence Blankenship had satisfied one of the conditions imposed by Insurance Code section 11580.2(i)(1) within two years of the accident, i.e., that he had:  (1) filed suit against the uninsured motorist, (2) reached an agreement as to the amount due under the policy, or (3) instituted formal arbitration proceedings.

It is undisputed that Blankenship failed to take any of the three actions set forth in section 11580.2(i)(1).  Nevertheless, Blakenship moved to compel Allstate to arbitrate.  The trial court denied Blankenship's motion, finding that he failed to perfect his claim against Allstate within the time required by section 11580.2(i), and the exemptions of "estoppel, waiver, impossibility, impracticality, and futility" in section 11850.2(i) did not apply.

Blankenship appealed, asserting(1) section 11580.2(i) must be interpreted to excuse non-compliance for minority, (2) failure to excuse non-compliance on the basis of minority violates constitutional guarantees of equal protection, and (3) the language of the Allstate policy indicates that minority would excuse noncompliance with the limitations period.

The Court of Appeal rejected all three arguments.  In rejecting Blankenship's first and primary argument that minority excuses noncompliance with the statute, the court relied on a longstanding rule of statutory construction, expressio unius est exclusion alterius, which means if exemptions are specified in a statute (such as those specified in section 11580.2(i)(3)), courts may not imply additional exemptions in the absence of a clear legislative intent to do so.  No such intent is disclosed in the legislative history of section 11580.2(i)(3).  To the contrary, the Court or Appeal notes that the Legislature, with knowledge of case law holding that minority does not excuse noncompliance with section 11580.2(i)(1), declined to include minority as one of the grounds for noncompliance when it amended the statute in 1995.

The Court of Appeal also rejected Blankenship's equal protection arguments.  The Court distinguished minors from those who are exempt under section 11580.2(i)(3) due to impossibility or impracticality, finding that a minor is not similarly situated to persons for whom compliance with the statute is truly impossible or impractical.  There is an obvious rational basis for the classifications made in the statute.

The court also found a rational basis for distinguishing between minors seeking recovery of underinsurance coverage and UM coverage.  Underinsured coverage does not exist until the tortfeasor's policy has been exhausted by payment of judgment or settlement.  An UM insurer's exposure, by contrast, arises upon what is supposed to be a prompt determination the tortfeasor is uninsured and the injured party's filing of a claim with his or her insurer.  This distinction is a rational basis for requiring minors seeking UM coverage to comply with section 11580.2(i) so their insurers are on notice as soon as possible and thereby encouraged to make an early settlement.

The Court of Appeal also rejected Blankenship's reliance on Allstate's policy language, which he contended should be interpreted to excuse his compliance with section 11580.2(i) during his minority.  The provision at issue states that Allstate "will pay those damages that an insured person is legally entitled to recover from the owner or operator of an uninsured auto because of ? bodily injury sustained by an insured person ?."  Because Blankenship is "legally entitled" to file an action against, and recover damages from, the tortfeasor up until his 20th birthday, Blankenship argued this provision entitles him to the same tolling period to preserve his UM claim against Allstate.  In light of the mandatory language of section 11580.2(i)(1), the Court of Appeal concluded it was not "reasonable" to interpret the "legally entitled" language to excuse a minor from complying with the statute.

Click here for opinion.

This opinion is not final. Though it has been certified for publication, it may be modified on rehearing, or granted review by the Supreme Court of the State of California. Should any of these events occur, the opinion would be unavailable for use as authority in other cases.

This and other case bulletins, as well as other publications of Gordon & Rees LLP, may be found at